McComas v State

McComas v State
1942 OK CR 158
131 P.2d 488
75 Okl.Cr. 321
Decided: 11/25/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Rape-Statutory Definition. Rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree. Section 2518, Sts. 1931, 21 O. S. 1941 § 1114.

2. Same-Nonage of Defendant as Defense. Penal Code, sec. 2516, Sts. 1931, 21 O. S. 1941 § 1112, providing: "Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of 14 years, with her consent, unless such person was over the age of 18 years at the time of such act." Construed, and held, that proof that the defendant was over the age of 18 years at the time of the commission of the alleged act is not indispensable to a conviction; nonage of the defendant being a matter of defense and not an essential element of the crime. Held, further, the latter sentence contained in said section creates a defense to a charge of rape committed on a female over the age of 14 years, with her consent.

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3. Same. Where the male is under the age of 18 years and the female is above the age of 14 years, and gives her consent to such act of intercourse, such act does not constitute rape. Section 2516, Sts. 1931, 21 O. S. 1941 § 1112.

4. Same-Age of Defendant Need not Be Alleged in Prosecution. It is not necessary in a prosecution for rape to allege the age of the male. The defense of nonage as provided in section 2516, Sts. 1931, 21 O. S. 1941 § 1112, and the reduction of the degree of the crime by reason of age of the male as provided in section 2518, Sts. 1931, 21 O. S. 1941 § 1114, are matters of defense.

5. Trial-Duty of Defendant to Present in Writing Special Instructions Desired. If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case when he has not requested such instructions.

6. Witnesses-Impeachment of Witness by His Previous Written Statements. Where a witness has made statements in writing different from those made on the trial, and the statements are shown the witness, and witness is given an opportunity to examine them, they may be read in evidence for the purpose of impeachment.

7. Rape-Evidence Sustained Conviction for Second-Degree Rape. Evidence upon a trial on an information for rape in the first degree, accomplished by means of force and violence overcoming resistance considered, and conviction of rape in the second degree affirmed.

Appeal from District Court, Grady County; Will Linn, Judge.

Darian Ray McComas was convicted of second-degree rape, and he appeals. Affirmed.

Appellant, Darian Ray McComas, and Marion G. Archer were jointly charged with the crime of rape in the first degree, alleged to have been committed in Grady county on or about the 7th day of August, 1938.

The information filed in the district, court of Grady county August 23, 1938, in substance charged that then and there the said defendants, Darian Ray McComas and Marion G. Archer, against the will and without the consent

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of one Dorothy Lee Burks, a female not the wife of either of said defendants, did by means of force overcoming her resistance rape, ravish, and carnally know her, the said Dorothy Lee Burks. The information contains no allegation as to the age of the defendants.

On March 15, 1940, said cause being called for trial, a severance was demanded and granted. The state elected to proceed to trial as to the defendant Darian Ray McComas, and a jury was duly impaneled and sworn to try the case.

On March 19th, the jury returned a verdict finding the defendant McComas "guilty of rape in the second degree as charged in the information and fixed his punishment at confinement in the penitentiary for one year."

Motion for new trial was duly filed, presented, and overruled on April 2, 1940; thereupon judgment in accordance with the verdict was rendered.

From the judgment an appeal was perfected by filing in this court September 24, 1940, a petition in error with case-made.

The salient, undisputed facts, as disclosed by the evidence in the case, briefly stated, are as follows:

The prosecutrix, Dorothy Lee Burks, an unmarried female, 16 years of age at the time the offense is alleged to have been committed, was living with her parents, on a farm two miles east and a mile north of the town of Verden. Appellant, McComas, lived in the Verden neighborhood. For the preceding four or five years both were pupils in the schools of Verden, and in 1938 she was a sophomore and would be a junior in the fall term of the highschool, and McComas would be a senior. She just knew him as a schoolmate, and had never had any dates with him.

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On Saturday, August 7, 1938, she, with her brothers Herman and Rayford, came to Chickasha, about 7 o'clock in the evening. They visited various places of amusement, including "Walt's place", Ninth and Choctaw streets, and the Bell Tavern, on Highway 81, three miles south of Chickasha; about half past 1 o'clock she with her brother Herman on their way home stopped at "Walt's place". There in a conversation with McComas he asked her who she was with; she told him her brother; he asked her if he could take her home, and after talking to her brother Herman, McComas said he would take her home in a short time; she walked out to his car with McComas; Marion Archer was sitting in the front seat; McComas asked her to get in the back seat, and got in with her; the car went west, then turned east and went south on the main highway. Archer stopped the car in the driveway to Mr. Garrett's, two miles south of Chickasha. Archer visited the house, returning in about ten minutes; Archer drove on south, passing the Bell Tavern, and four miles south of Chickasha he turned east off the main highway, about a quarter of a mile, and stopped the car. While there all three were out of the car. McComas took the car, drove on east, turned and coming back, stopped the car. The prosecutrix got in the back seat with Archer. McComas then drove back to the city; she asked him to stop and leave her at the Nash residence, 616 Iowa avenue; there Archer got out of the car and walked with her to the house; Miss Nash came to the door; it was then about 2 o'clock.

The prosecutrix testified that McComas started making love to her, put his arms, around her, and kissed her and asked her to marry him, and she told him she did not care about him, except as a friend. When Archer stopped the car and visited a house McComas started making

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advances; she asked him to stop, and he would not; he told her he loved her and said he wanted to marry her. Archer returned and drove the car on south. McComas was trying to overcome her resistance and have intercourse with her, struck her on the head, and told her it would not do any good for her to fight, that he was going to have intercourse with her whether she wanted to or not; that after passing the Bell Tavern, McComas told Archer to drive off the highway at the next crossroad, and he did and stopped the car, then McComas told him to get out and that he left the car; she told McComas that her menstrual period was on; he said he did not care, that he didn't believe it; that he had his hands on her throat, choking her, that he called her vile names, that she told him that she had never done that before and was not going to do it now, that she was fighting him all the time while he was holding her in the car, her head struck the floor board of the car, and it stunned her. He put his arms around her back and legs and pulled her out of the car, and dropped her, that she lost consciousness, and the next thing she remembers he was over her with his private part in her body, and she was suffering severe pains in the lower part of her body, that she tried to push him off, but was weak and had very little strength left. She was crying and told him it hurt her, and begged him to let her alone. That when he got up Archer came back; he told Archer that he could have her now; Archer sat down on the ground beside her, and told her he was going to protect her. McComas got in the car, drove off, turned around, came back in about five minutes, stopped the car, Archer pulled her up and helped her to get into the back seat, and sat down beside her; McComas drove the car, and asked her where she wanted to go, she told him. He asked her what story

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she was going to tell them and told her that he would kill her if she ever told it. That when the car stopped at the Nash home, Archer helped her across the street and up onto the side of the porch; she knocked on the door, Miss Hattie Nash came to the door and asked who was there; she told her Dorothy Lee Burks, and that she had been attacked and raped; Mrs. Nash was standing inside, they took her in, gave her a hot bath and washed her dress and undergarments. Her back was hurting, she had a bruise on each shoulder, and red marks around her neck, that later turned blue, and her head was hurting. Her brother Herman came after her and she reached home about 6 o'clock in the afternoon. She made complaint to her mother and her married sister, and they took her that evening to Dr. Kerley, at Anadarko, who made an examination of her person; the next day they took her to Dr. L. E. Woods, at Chickasha, and he examined her.

Mattie Nash testified that on August 8, 1938, she lived at 616 Iowa street, Chickasha, with her parents and two brothers; that Dorothy Lee Burks came to their home around 2 o'clock Sunday morning and woke her and her mother up; they helped her into the house and she told them that she had been raped, her hair was disarranged and her dress and underclothes were dirty; there was blood on her slip; they helped her to take a bath and clean up; she noticed that her lips were bruised; her shoulder bruised, she had a bruised spot on her back and had a bump on the back of her head; that they washed her clothes and put her to bed.

The testimony of Mrs. Walter Nash, her mother, was substantially the same as that of her daughter.

Mrs. J. C. Motsenbacker testified that she was at her parents' home when her sister Dorothy Lee came, about 6 o'clock; that she observed a large knot on the

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side of her head; there were marks on her neck, and her breast was badly bruised, she was very weak; that evening she, with their mother, went with her to Anadarko to see Dr. Kerley.

Dr. W. W. Kerley testified that he had been practicing medicine 38 years at Anadarko; that on "August 8th, at about 7:30 o'clock p.m., I examined Dorothy Burks, Verden, Oklahoma, R.F.D. No. 2, and I found bruises on the left shoulder and some bruises on the left breast, right shoulder and neck; some black spots on outer surface of thighs, cuts on inner side of lower lip; bruises about the hymen and bleeding." That the foregoing is the record he made at that particular time.

Dr. L. E. Woods testified that on August 8, 1938, he made an examination of the prosecutrix, found a small bruise on the right wrist, and at the point of the left shoulder, also a small blue spot on the left thigh, in front, and a medium size bruise on the back of the head; in the region of the pelvis there had been a laceration, of the mid-line of the vulva, with some blood in the introitus and some bruises on the structures. A vaginal examination was impossible because of the bruises and the pain.

We do not deem it necessary to state the testimony of two other witnesses called on the part of the state.

When the state rested, counsel for appellant interposed a demurrer to the evidence, "for the reason that it is wholly insufficient to show that any offense had been committed against the laws of the State of Oklahoma, and is wholly insufficient to sustain the allegations of the information, and for the further reason that the testimony is not the clear and explicit testimony required under the decisions of the Criminal Court of Appeals, and the court is requested by the defendant to dismiss

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this case," which demurrer was overruled and exception allowed.

On the part of the defense, the first witness called, Marion G. Archer, codefendant, testified that he was a single man, age 24 years, met Dorothy Lee Burks for the first time the night of August 7, 1938, in Chickasha, at Walt's place; that McComas and the Burks girl got in the back seat of the McComas car in front of Walt's place; the girl said she wanted to go out to Bell Tavern. He drove south on Highway 81, stopped at Jess Garrett's, got out and went to the house to get a drink of water, and went with Jess to the well, was there about 15 minutes; McComas and the girl remained in the back seat of the car, that he then drove on south, that he did not hear or see anything to indicate up to that time that McComas was trying to have sexual intercourse with the girl, that when they got down near the Bell Tavern the girl did not want to stop, she just said, "Go straight ahead, there was an off road down there, let's stop down there", that he turned east on a crossroad, stopped the car, she said something like there was too many in the car, and he got out, walked down the road and sat down for about ten minutes; that he saw McComas and the girl when they got out of the car, when he came back to the car he sat down by the girl and McComas got in the car, drove on east, turned around, and drove back. He got in the back seat with the girl and McComas drove back to the city; that McComas did not ask him to lie down on top of this girl and have intercourse with her, that when they got to Chickasha the girl said she did not want to go home, and said she wanted to go to the Nash home. McComas wanted to take her home, and he told McComas to take her where she wanted to go, and they took her to the Nash home. That there he walked

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to the porch with her and left her there at the door; that he was arrested the next day, Monday at noon.

On cross-examination, asked if in the county attorney's office, on August 10, 1938, with Roy Glass, his stepfather, present and Marie Forston, a stenographer and notary public, he made a full, free, and voluntary statement under oath, having been first duly sworn by Marie Forston, notary public, and before making that statement the county attorney stated: "You are jointly charged with Darian McComas of the crime of first degree rape, you are entitled to have a lawyer present if you want one, and you don't have to say anything that might incriminate you, but with this explanation, do you now want to make a full, free, and voluntary statement about all you know about this case?" and you told me "Yes". Answered: "I don't remember what you said, I do remember holding up my hand to be sworn to tell the truth." And "wherein you stated that you stopped at Jess Garrett's to see if your brother was in town, and didn't you say when you returned to the car 'I think they were scuffling back there."' Answered: "I don't remember", and to each question relating to his sworn testimony he answered "I don't remember" and "I don't know," with one exception he did remember stating, "After we went by Bell Tavern I heard her tell him to leave her alone."

On redirect he stated:

"After you made that statement I will ask you if they didn't turn you out on a $1,000 bond? A. Yes, sir. Q. Did anyone make any promise to you on that? A. Not that I remember, no, sir. Q. How long was it, now, from the time you all left Walt's place, until you got back to Chickasha. A. Probably 45 minutes."

Jess Garrett testified that he lives a mile south of Chickasha, on Highway 81, remembers the occasion of Marion Archer driving to his place about the hour of

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12:30, and he saw a boy and a girl in the car, Archer was there about 15 minutes, and the girl did not scream or call for help while they were there.

Mrs. May Carddock testified and identified a copy of the birth certificate of Darian Ray McComas, showing "Date of birth 10-17-21."

Several character witnesses testified that they knew the general reputation of Darian Ray McComas in the Verden community as to being a peaceable, law-abiding young man, and that it was good.

As a witness in his own behalf McComas testified:

"I was 17 years October 18, 1938, 1 had known Dorothy Lee Burks about five years. On August 7, 1938, my weight was about 150 pounds; my height six feet one, Archer and I had been to Chickasha, on our way home we stopped at Walt's place, I asked her if I could take her home, she consented and her brother gave his consent. When we got in the car she said she did not have to go home, and wanted to go out to the Bell Tavern. I had my father's car. Archer was driving; he stopped at Jess Garrett's house; there he got out and went to the house; I stayed in the car with her; we stayed there about 15 minutes. Archer got in the car and drove on towards Bell Tavern; it did not look like the usual big crowd was there. She said there was no use of stopping as we went on south. She told Archer to drive off at a crossroad, he turned east, went about 100 yards and stopped the car, she made some suggestion that we did not need him there with us. Archer got out of the car, and walked on down the road and was gone about five minutes."

He denied that he tried to rape her there in the car; denied that he called her vile names or that he cursed her, that he did not try to have sexual intercourse with her in the car, that he got out of the car and sat down on the bank by the side of the road, that she got out and came and sat down in his lap and went to hugging

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him and acted like she wanted to have sexual intercourse with him. He denied that he told Archer to take her.

He further testified:

"I asked her to have intercourse with me, she said she could not tonight, because her monthlies were on, but some other time we might, when Archer came back I got up and got in the car. I supposed that they were going to get in the car, but they didn't, so I drove the car down the road, turned around and came back there, they were standing by the side of the road, they got in the back seat, and I drove back to Chickasha. I was going to take her home and she wanted to go to her cousin's home, on Iowa avenue, and I drove to the Nash home. When we got there, Archer went to the house with her. We were gone from the time we left Walt's place until we came back about 45 minutes; Archer and I when we first came to town that night had a bottle of beer between us. I never saw her cry and she was not crying when she got out of the car, and I judge it to be a little after one. After we took her home, we went down to Walt's place and Marion and I washed our hands there."

In rebuttal, Mrs. Marie Forston testified:

"I am stenographer in the county attorney's office, have known Roy Glass, and his step-son, Marion G. Archer, about 15 years, as a notary public I took the sworn statement of Marion G. Archer on August 10, 1938, in shorthand and transcribed the same into long hand."

Witness identified her shorthand notes and typewritten transcription:

"Mr. Williams: We offer this statement in evidence for the purpose of impeachment against Marion G. Archer, and specifically offer excerpts from pages 4, 5, 6, 8, 9, 10, 11 and page 12. Mr. Hatcher: The defendant objects to each and every one of the specific offers for the reason that it shows on its face that it is improper rebuttal. Overruled. Exception."

The statement is in part as follows:

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"Q. What was the next thing said by any one after that? A. Well. he told me to go ahead, and I said, 'No I don't believe I will,' and this girl says, 'No, don't', and I don't remember just what he did say; anyhow he wanted me to go ahead, and I didn't want to; I was a good bit older, so I said that, 'I do not believe I will'; he kept on telling me to lay down by the side of the girl. Q. Just tell what happened? A. We messed around a few minutes. I told him to go on away, and he went away from us. Q. How long did you and she remain there? A. I don't know; about ten minutes after he left. He went down the road, turned the car around and came back; he killed the motor, and turned the lights off; we got up and got in the car. Q. What was the girl's condition when you laid down there beside her? A. Well, I don't hardly know. Q. What did she say to you? A. She never said anything, only begged me not to. Q. Well, now, Marion, as I understand you, McComas insisted that you make this girl have intercourse with you, and the girl pleaded for you not to; did she ever get up and stand up while this conversation was going on? A. No, sir. Q. You laid down beside her and McComas told you to get on top of her while he, McComas, was there? A. Yes. Q. What was his disposition and attitude at the time he was trying to get you to ravish this girl? A. He just acted as though he did not care for nothing; he was cursing all the time and was cursing me and all like that and I didn't pay no attention to him cursing me because he did that all the time when we were together."

Other questions were replied to in language too indecent to be recited here.

DeArthur Wilson, deputy sheriff, testified that on August 8, 1938, from information received from Dorothy Lee Burks, he with Gordon Cook, a photographer, went about four miles south of Chickasha, on U. S. Highway 81, then about a quarter east, and there on the south side of the road, and where a car had been parked, it looked like there bad been a kind of scuffle the way weeds and

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stuff were broken down, found where a car had been turned around about 30 yards east.

He further testified:

"Q. Mr. Wilson, as such deputy, did you and Gordon Cook go down there and take some pictures? A. Yes. Q. What day do you fix it at? A. On Monday morning. Q. Tell the court and jury what evidence, if any, you found there of sexual intercourse or a struggle? (Objected to as improper rebuttal. Overruled. Exception.) A. Well, on the south side of the road there was two rubbers, right next to the bar pits, and immediately across the road on the north side there was a kotex that apparently had been worn. Q. I hand you state's exhibit No. 9 and ask you what that is? A. That is a picture taken on the south side of the road where two rubbers were laying."

The testimony in this case is voluminous. The transcript covers more than 400 pages, but the foregoing is in substance the material testimony in the case.

Hatcher & Bond, of Chickasha, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE, J. This appeal is prosecuted from a judgment rendered in the district court of Grady county, in accordance with the verdict of a jury finding Darian Ray McComas guilty of rape in the second degree and assessing his punishment at imprisonment for a term of one year in the Granite Penitentiary.

The information, omitting merely formal parts, charges:

"That Darian Ray McComas and Marion G. Archer, did in Grady County, on or about the 7th day of August, 1938, and anterior to the presentment hereof, commit the crime of Rape--First Degree, in the manner and form as follows to wit:

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"That on or about said day and date, and in said county and state, the said defendants, Darian Ray McComas and Marion G. Archer, then and there being, did then and there wrongfully, wilfully, unlawfully, forcibly, violently and feloniously, make an assault in and upon one Dorothy Lee Burks, a female not the wife of the said Darian Ray McComas or Marion G. Archer, without her consent and against her will, by means of force overcoming her resistance, rape, ravish and carnally know her, the said Dorothy Lee Burks contrary to," etc.

Upon the trial the defense interposed was a denial of accomplishing the act charged, and also nonage, in that at the time of the alleged commission of the offense the defendant was under the age of 18 years.

The grounds of the motion for a new trial and assigned as error in the petition are, in effect, that the verdict was contrary to law and to the evidence.

The other assignments are:

"Error of the court in overruling the defendant's demurrer at the close of the state's evidence; error of the court in not directing the jury to return a verdict of not guilty for the defendant, as requested by the defendant, at the close of all the evidence in the case;" error of the court in giving instructions numbered 5, 9, 11, and 14 over the objections and exceptions of the defendant.

The errors assigned require consideration of the following Penal Code provisions:

As defined by our Penal Code:

"Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * * Fourth. Where she resists but her resistance is overcome by force and violence." Section 2515, Sts. 1931, 21 O. S. 1941 § 1111.

The sections which classify the crime of rape into degrees and fix the punishment are:

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"No conviction for rape can be had against one who was under the age of 14 years at the time of the act alleged unless his physical ability to accomplish penetration is proved as an independent fact and beyond a reasonable doubt. Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of 14 years, with her consent, unless such person was over the age of 18 years at the time of such act." Section 2516, Sts. 1931, 21 O. S. 1941 § 1112.

"Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree." Section 2518, Sts. 1931, 21 O. S. 1941 § 1114.

"Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court." Section 2519, Sts. 1931, 21 O. S. 1941 § 1115.

"Rape in the second degree is punishable by imprisonment in the penitentiary not less than one year nor more than fifteen years." Section 2520, Sts. 1931, 21 O. S. 1941 § 1116.

Under section 2516, if the male is under the age of 18 years, and the female is above the age of 14 years, and the act is with her consent, no offense is committed, nor can a person be convicted of rape with a female over the age of 14 years with her consent, unless such person was over the age of 18 years at the time of said act. See Brasel v. State, 48 Okla. Cr. 403, 291 P. 807.

It is contended that the trial court erred in giving to the jury certain instructions submitting the law of

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rape in the first degree, accomplished by force overcoming her resistance:

The court further instructed the jury as follows:

"No. 6. You are also instructed gentlemen, under the law no one can be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of eighteen years at the time.

"No. 10. You are instructed gentlemen, that under the law any male under the age of eighteen years having sexual intercourse with a female over the age of fourteen years, accomplished by force or violence overcoming her resistance is guilty of rape in the second degree.

"No. 11. So you are instructed gentlemen, with reference to rape in the second degree, that if, after a fair and impartial consideration of all the evidence in the case and the instructions of the court herein given you, you entertain a reasonable doubt as to whether or not the defendant is guilty of rape in the first degree as hereinbefore defined to you, you should then consider as to whether or not the defendant is guilty of rape in the second degree as herein defined and if, after a fair and impartial consideration of all the evidence in the case and the instructions of the court herein given you, you are convinced beyond a reasonable doubt that in the county of Grady and state of Oklahoma, and on or about the seventh of August 1938, the defendant Dorian Ray McComas, being then and there under the age of 18 years did unlawfully, willfully and feloniously have sexual intercourse with the said Dorothy Lee Burks, without, her consent and against her will, accomplished by means of force or violence overcoming her resistance, and she, at said time, was not the wife of said defendant, then in that event you should find the defendant guilty of rape in the second degree and should you find the defendant guilty of rape in the second degree, you must fix his punishment at confinement in the penitentiary for any period not less than one nor more than 15 years.

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"In this connection gentlemen, you are instructed that you cannot convict the defendant, if you find and believe from the evidence, or entertain a reasonable doubt thereof , that he was at said time, under the age of 18 years and had sexual intercourse with Dorothy Lee Burks with her consent." Excepted to by the defendant. Exception allowed.

"No. 14. You are instructed gentlemen, if you find and believe from the evidence, or entertain a reasonable doubt thereof, that the defendant was under the age of eighteen years, and further find beyond a reasonable doubt, that he had sexual intercourse with the prosecuting witness, Dorothy Lee Burks, against her will and by force and violence, overcoming her resistance, then he would be guilty of rape in the second degree, whether the said Dorothy Lee Burks was a virgin or of previous chaste character or not." Excepted to by the defendant. Exception allowed.

Counsel for defendant in their brief say:

"The court should have instructed the jury in this case that the evidence was undisputed and uncontradicted that the defendant was under the age of 18 years at the time of the alleged crime."

There is no merit in this contention.

It appears from the record that counsel for appellant presented no request for additional instructions.

It has been repeatedly held by this court that:

"If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case, when he has not requested such instructions." Williams v. State, 12 Okla. Cr. 39, 151 P. 900; Merriott v. State, 18 Okla. Cr. 247, 194 P. 263; Pulliam v. State, 61 Okla. Cr. 18, 65 P.2d 426; Green v. State, 70 Okla. Cr. 228, 105 P.2d 795.

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In William v. State, 17 Okla. Cr. 452, 190 P. 892, 893, it is said.:

"It was held by this court, in the case of Penn. v. State, 13 Okla. Cr. 367, 164 P. 992, L.R.A.1917E, 668, that the provision in section 2415, Revised Laws 1910 [Sec. 2516, Sts. 1931, 21 O. S. 1941 § 1112], 'nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of 14 years, with her consent, unless such person was over the age of 18 years at the time of such act,' was a matter of defense to the crime of statutory rape, and that it was not necessary to negative such defense in the indictment or information charging the crime." Cotts v. State, 34 Okla. Cr. 59, 244 P. 817.

The instructions as a whole fully and fairly stated the law applicable to the facts disclosed by the record, and were as favorable to the defendant as the law and the evidence warranted.

The only other question involved in this appeal is the sufficiency of the evidence to sustain a conviction.

Counsel for appellant in their brief state:

"The defendant relies principally in this appeal on the insufficiency of the evidence, and that the state's evidence is too inherently improbable, incredible, unreasonable and contradictory upon which to base a judgment and sentence."

And quotes liberally from numerous cases decided by this court in which the judgments of conviction in rape cases were reversed because not sustained by sufficient competent evidence.

A careful examination of the entire record and the briefs leads to the conclusion that there is no merit whatever in this appeal, and we think the defendant's own

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testimony amounts virtually to a plea of guilty. We cannot see how any honest, intelligent jury under the evidence could have returned a verdict otherwise than one of guilty.

It is sufficient to say that the improbability of the prosecutrix' testimony must arise from something other than the likelihood of the improbability of the commission of crimes of this character. The testimony of the prosecutrix must be of such a contradictory and unsatisfactory nature, or else such witness must be so thoroughly impeached, that this court may say that such testimony is clearly unworthy of belief and insufficient in law to sustain the conviction.

In a prosecution for rape it is always legitimate to consider whether the subsequent conduct of the prosecutrix is the usual and natural conduct of an outraged woman, as bearing upon the credibility of her direct testimony. In this case it appears that the prosecutrix immediately made complaint to Mrs. and Miss Nash, the first persons she spoke to upon leaving the defendant's car, and also made complaint to her mother and sister upon meeting them the same day.

In the instant case the testimony of the physicians who examined the prosecutrix on the date the crime was alleged to have been committed corroborated her testimony.

The rule contended for by the defendant was condemned by this court in the case of Bulls v. State, 33 Okla. Cr. 64, 241 P. 605, 606, wherein this court held:

"The old rule of 'resistance to the uttermost' is obsolete, and is repudiated by the more modern authorities. The law does not require that the woman shall do more than her age, strength, the surrounding facts and all attending circumstances make it reasonable for her to

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do in order to manifest her opposition. In reference to the degree of resistance required, the jury should be instructed that it is necessary, not that the prosecutrix should have made the uttermost resistance, but that she has made such resistance as she was capable of making at the time." And see Burtt v. State, 64 Okla. Cr. 68, 77 P.2d 580; Thomas v. State, 69 Okla. Cr. 188, 101 P.2d 283.

Upon the undisputed facts and circumstances in evidence, the contention that appellant did not accomplish an act of sexual intercourse by force overcoming her resistance, or that the prosecutrix consented, is wholly without merit.

Upon a careful examination of the record, we conclude that there was no error committed by the trial court which could have been prejudicial to the substantial rights of the defendant. The evidence shows beyond all reasonable doubt that the defendant was guilty of rape in the second degree, and we think that he ought to be thankful that the jury in fixing the minimum punishment dealt so leniently with him.

As we view the record a case seldom appears in criminal annals showing more depravity in the defendant or a greater outrage to common decency and public morals.